Justice Clarence Thomas and the Original Meaning of the Commerce Clause

At the Social Science Research Network, Claremont McKenna College professor Ralph A. Rossum has posted his fascinating University of Detroit Mercy Law Review article “Clarence Thomas’s Originalist Understanding of the Interstate, Negative, and Indian Commerce Clauses.” Here’s a sample from the abstract:

During his twenty years on the Supreme Court, Justice Clarence Thomas has pursued an original understanding approach to constitutional interpretation. He has been unswayed by the claims of precedent — by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions. Like too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent — focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means — hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the Justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood — to the original understanding of the Constitution.

The Commerce Clause is of course also central to the Supreme Court's looming decision on the constitutionality of the Patient Protection and Affordable Care Act. Whatever else that ruling holds in store, I think it's very safe to say we can expect Thomas to pen a powerful concurrence or dissent laying out in detail why the individual mandate violates the Constitution's original meaning.

For Reason's coverage of Thomas' originalist jurisprudence, go here.

(Thanks to The Originalism Blog for the link.)

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  • Whiterun Guard||

    He just doesn't look right without Detective Riggs standing nearby.

  • Citizen Nothing||

    He's gettin' too old for this shit.

  • CockGobbla||

    No way ObamaCare lives. No way.

  • Citizen Nothing||

    So he's like the Homer Formby of the SCOTUS?

  • Rasilio||

    Yes but the real question is whether the original Constitution had pubic hair on it.

    Seriously though originalist intent may be preferable to what we have now but it is hardly a panacea for the problems in our government nor will it lead to some sort of minarchist utopia.

  • R C Dean||

    True enough, I suppose, Rasilio.

    Although I suspect that if we woke up tomorrow morning in a country governed according to the Constitution as written, you would think you were in some kind of minarchist utopia.

  • Keith3D||

    The good may be preferable to the bad, but it is hardly a perfect.

  • ant1sthenes||

    Sort of makes sense that a black man would hold precedent as less important, considering Brown v. Board of Education overturned decades-old precedent from Plessy v. Ferguson.

  • mad libertarian guy||

    But, according to the left, he isn't black. He's an Uncle Tom house nigger who's filled with self hatred.

  • Juice||

    They really should have put the words "commerce that crosses state lines" in there.

  • James Anderson Merritt||

    Reading this article, I have visions of TV commercial for Thomas' Restorative Oil, in which kindly craftsman, Uncle Clarence, shows us how to restore that revolutionary-era antique furniture to its full glory by stripping off those layers of precedent -- er, I mean paint -- with his patented "originalist" formula oil.

  • Alex the wolf||

    Clarence Thomas is a hero

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